State v. James Arthur Davenport

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 06, 2018
The Court of Appeals hereby passes the following order:
A18A1252. THE STATE v. JAMES ARTHUR DAVENPORT.
On September 28, 2017, the trial court granted defendant James Davenport’s
general and special demurrers and motion to quash an accusation charging him with
four county zoning ordinance violations. The State filed a motion to reconsider,
which the trial court denied on October 6, 2017. On November 2, 2017, the State
filed a notice of appeal from the order denying its motion to reconsider. We lack
jurisdiction.
The State’s right to appeal in criminal cases is limited by statute. See OCGA
§§ 5-7-1; 5-7-2; State v. Outen, 289 Ga. 579, 580 (714 SE2d 581) (2011); Ritter v.
State, 269 Ga. 884, 885 (2) (506 SE2d 857) (1998). “If the State attempts an appeal
outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction
to entertain it.” Outen, 289 Ga. at 580 (punctuation omitted). In this case, the State
seeks appellate review under OCGA § 5-7-1 (a) (1), which authorizes a direct appeal
to be taken by the State “[f]rom an order, decision, or judgment setting aside or
dismissing any indictment, accusation, or a petition alleging that a child has
committed a delinquent act, or any count thereon.”
A notice of appeal must be filed within 30 days of entry of the trial court order
sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice
of appeal is an absolute requirement to confer jurisdiction on this Court. See
Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). The State’s notice
of appeal is untimely, as it was filed 35 days after the trial court entered its order
granting Davenport’s demurrers and motion to quash. Although the State filed a
motion for reconsideration of that order, a motion for reconsideration does not extend
the time for filing a challenge to an appealable order, and the denial of such a motion
is not appealable in its own right. State v. White, 282 Ga. 859, 860 (1) (655 SE2d
575) (2008); see also State v. Lynch, 286 Ga. 98, 102 (2) (686 SE2d 244) (2009).
Consequently, we lack jurisdiction to consider this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/06/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.